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Ivan Kilgore v. Tim Virga

July 30, 2012

IVAN KILGORE, PLAINTIFF,
v.
TIM VIRGA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel. The court ordered service of process on defendants Hamad, Johnson and Nappi. On May 29, 2012, defendants filed a motion to dismiss plaintiff's amended complaint on the grounds that plaintiff failed to state an access to the courts claim, and that defendants Johnson and Hamad cannot be found liable on a theory of respondeat superior. On June 7, 2012, plaintiff filed a 70 page document entitled, "Motion to Amend a Second Time, and to Supplement Plaintiff's First Amended Complaint." (Dkt. No. 32.) On June 14, 2012, plaintiff filed a 61 page document entitled "Addendum to plaintiff's June 5, 2012, Notice and Motion to Amend for a Second Time and Supplement Plaintiff's First Amended Complaint." (Dkt. No. 34.) On June 21, 2012, plaintiff filed an opposition to the motion to dismiss. (Dkt. No. 35.) However, plaintiff does not substantively oppose defendants' motion to dismiss; rather, plaintiff directs the court's attention to his motions to amend and claims the motion to dismiss should not be granted because plaintiff's factual allegations have changed.

On June 28, 2012, defendants filed a reply, objecting that plaintiff is not permitted to change the factual allegations absent leave of court as plaintiff is only permitted to amend the complaint once as a matter of right, but that if the court is inclined to grant plaintiff leave to amend, defendants ask that the court screen plaintiff' second amended complaint pursuant to 28 U.S.C. § 1915A.

Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that: A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Id.

An amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended pleading is filed, the original pleading no longer serves any function in the case. Id.; see also L.R. 220 (every pleading to which an amendment is permitted as a matter of right shall be retyped and filed so that it is complete in itself without reference to the prior pleading.). Although the allegations of this pro se complaint are held to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), plaintiff is required to comply with the Federal Rules of Civil Procedure and the Local Rules of the Eastern District of California.

Defendants are correct that plaintiff previously amended his complaint on December 23, 2011. However, in an abundance of caution, the court will allow plaintiff one final opportunity to amend his complaint. Plaintiff is cautioned, however, that the second amended complaint must be complete in and of itself. Plaintiff may not simply "supplement" his prior pleadings by attempting to insert additional facts into previously-pled pleadings. Plaintiff must file one document that includes his factual allegations as to defendants Nappi, Johnson and Hamad. Plaintiff is not granted leave to name additional defendants.

Moreover, as plaintiff was previously informed, plaintiff must allege facts demonstrating a constitutional violation as to each named defendant. The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

In addition, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where there is no evidence of personal participation). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

Plaintiff's primary claim is that certain defendants allegedly interfered with plaintiff's access to the courts. An inmate has a constitutionally protected right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 820-21 (1977). A prisoner claiming that his right of access to the courts has been violated must show that: 1) plaintiff's access was so limited as to be unreasonable, and 2) the inadequate access caused actual injury. Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir. 1994). A prisoner cannot make conclusory declarations of injury, but instead must demonstrate that a non-frivolous legal claim has been frustrated or impeded. To prevail, however, it is not enough for an inmate to show some sort of denial. An "actual ...


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